Under the Negotiable Instruments Act, issuance of a cheque creates a presumption of a legally enforceable debt, and the burden lies on the accused to disprove this, which was not done.

ORDER :

(VENKATESH NAIK T., J.)

Heard Sri.Harshwardhan M.Patil, learned counsel for Sri.Ramesh I.Patil., learned counsel the petitioner and Sri.Sachin C.Angadi., learned counsel for respondent.

2. The petitioner-accused has filed this petition under Section 397 (1) read with Section 401 of the Code of Criminal Procedure (for short ‘ Cr.P.C .) praying to set-aside the judgment dated 04.10.2023 passed by learned VII Additional District and Sessions Judge, Belagavi sitting at Chikkodi (for short ‘First Appellate Court’) in Crl.A.No.5025/2022 and also to set-aside the judgment of conviction and order of sentence dated 23.06.2022 passed by learned Senior Civil Judge and JMFC., Nippani (for short ‘Trial Court’)in C.C.No.117/2018 for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (for short ‘N.I.Act’).

3. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The petitioner is the accused and respondent is the complainant.

4. The brief facts of the complainant's case are as under:

The complainant filed a private complaint under Section 200 of Cr.P.C ., for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 contending that, the accused had borrowed loan of Rs.4,00,000/- from the complainant in the year 2015 for his family and legal necessity, agreeing to repay the same within one year. However, the accused failed to make payment and the accused postponed to make payment on one or other pretexts, and ultimately, on 19.05.2017, the accused issued a cheque of Rs.4,00,000/- bearing No.653054 drawn on State Bank of India, Nippani branch in favour of complainant. The said cheque was presented for encashment. Upon presentation, it was returned with shara as "Drawers signature to operate account not received”. Thus, complainant got issued legal notice calling upon the accused to pay amount due under the Cheque, but, accused neither replied to the legal notice nor paid amount due under the Cheque. Hence, complainant filed a private complaint under Section 200 of Cr.P.C ., for the offence punishable under Section 138 of N.I. Act.

5. After institution of the complaint, the Trial Court recorded the sworn statement of the complainant, took cognizance under Section 190(1)(a) of Cr.P.C ., secured the presence of accused and recorded his plea.

6. The complainant in order to prove his case, examined himself as PW1 and relied upon the documents as Exs.P1 to P5. The accused also examined as DW1 and got marked Exs.D1 and D2.

7. After hearing both complainant and accused, the Trial Court convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced to pay a fine of Rs.4,00,000/- to the complainant.

8. Being aggrieved by the judgment of conviction and order of sentence passed by the Trial Court, the accused preferred an appeal before the First Appellate Court. In turn, the First Appellate Court confirmed the judgment of conviction and order of sentence passed by the trial Court. Hence, this petition.

9. Learned counsel for the petitioner vehemently contended that the cheque in question was issued to the third party for security purpose and the complaint does not disclose the exact date of hand loan availed by the accused. Further, the complainant has failed to prove the ingredients that the debt in question was legally recoverable debt and the trial Court has wrongly raised presumption without noticing that the provisions of Section 138 of N.I.Act does not attract at all in the present case. On all these grounds,